These Software as a Service (SaaS) and Services Terms and Conditions (“Terms” or this “Agreement”) govern the purchase of the license to the Software and access to Services by the Client and its Users (“you”, “your”, and terms of similar meaning) made available by12700921 Canada Inc, d.b.a. Topology Health (“we”, “us”, “Provider” and terms of similar meaning) made pursuant to an executed SaaS and Services Agreement (defined below).

By executing a SaaS and Services Agreement, or by accessing or using the Services, you agree to be bound by these Terms, and all terms, policies and guidelines incorporated by reference in these Terms.

The SaaS and Services Agreement is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the SaaS and Services Agreement expressly conflict with these Terms, the conflicting provisions of the SaaS and Services Agreement control and shall take precedence over the conflicting provisions of the Terms.

1 DEFINITIONS

1.1 “Additional Services” means any additional services, other than the Services, authorized by the Client that the Provider agrees to perform or is required to perform hereunder. The Additional Services shall include, but are not limited to any authentication, integration, data mapping, and implementation services, as further described in the SaaS and Services Agreement or a Schedule.

1.2 “Administrator” means a person or persons assigned by the Client to have the authority to act as the administrator of the account on behalf of the Client.

1.3 “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over this Agreement or the supply or use of the Services.

1.4 “Client” shall mean the individual or organization who is bound by the terms of the SaaS and Services Agreement and these Terms.

1.5 “Client Data” means any data or content inputted into the Software by the Client or any of its Users and hosted on the servers of the Cloud Providers, which may include, without limitation, the Personal Information of a User of the Client. For clarity, Client Data includes Marks, as defined in Section 9.8, but excludes any Personal Information relating to Client’s customers or end-users, or third parties.

1.6 “Cloud Providers” has the meaning given in Section 6.1.

1.7 “Fees” means the fees to be paid by the Client pursuant to the SaaS and Services Agreement, these Terms and any applicable Schedules.

1.8 “Personal Information” means any information relating to identifiable individuals (including, without limitation, customers of the Client or a User), the collection, use or disclosure of which is regulated by Privacy Laws.

1.9 “Privacy Laws” means any applicable federal, provincial, local, and/or international laws, regulations and rules governing the collection, use and disclosure of information relating to identifiable individuals, including the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection Act (British Columbia), the Personal Information Protection Act (Alberta), the Act Respecting the Protection of Personal Information in the Private Sector (Quebec), and any similar legislation enacted by any province or territory of Canada or internationally.

1.10 “Schedule” means a schedule, which is attached to this Agreement, the SaaS and Services Agreement or which may be added hereafter by written agreement of the parties.

1.11 “Services” means the use of and license to the Software and the related software-as-a-service offering provided by the Provider to the Client pursuant to the SaaS and Services Agreement or any Schedule.

1.12 “Software” means the software as a service (SaaS) platform licensed to the Client pursuant to the terms of the SaaS and Services Agreement.

1.13 “SaaS and Services Agreement” means the Topology Health SaaS and Services Agreement to which these Terms are attached that is entered into between the Client and the Provider, including any Schedules, addenda and supplements thereto.

1.14 “Term” shall have the meaning given in Section 12.1.

1.15 “User” means an individual user who (i) is permitted to use the Software; and (ii) agreed to these Terms. Users may include employees, agents, and/or independent contractors of the Client who are authorized to use the Services.

1.16 “Work Product” means any materials or deliverables generated as part of the Additional Services and any related work, offered by the Provider to the Client in accordance with the terms of a SaaS and Services Agreement or a Schedule. Work Product may include software (including object and source code), computer system designs, web designs and applications, documentation, inventions (whether or not patentable or reduced to practice), developments or like materials, trade secrets, print material, data that the Provider makes, conceives, or devises, either solely or jointly with Client, in the course of offering the Additional Services. WORK PRODUCT SPECIFICALLY EXCLUDES THE SOFTWARE AND THE SERVICES OR ANY PRE-EXISTING, THIRD PARTY, OPEN-SOURCE MATERIAL, OR ANY DEVELOPMENT THAT IS INTENDED BY THE PROVIDER TO BE AN ENHANCEMENT TO THE SOFTWARE OR ANY NEW SOFTWARE DEVELOPED BY THE PROVIDER THAT IS INTENDED TO BE OWNED BY THE PROVIDER, AND THE CLIENT DATA.

2 PRIVACY AND SECURITY

2.1 Please refer to the Privacy Policy for information on how we or our licensors collect, use and disclose your Personal Information. By using the Services and/or the Additional Services, you agree to the use, collection and disclosure of personal information, personally identifiable information and/or data in accordance with the Privacy Policy.

3 ADDITIONAL SERVICES AND RESPONSIBILITIES

3.1 Additional Services. The Provider shall perform the Additional Services in accordance with the SaaS and Services Agreement, these Terms, and the applicable Schedule(s), and in a timely, diligent and professional manner.

3.2 Conflicts. The SaaS and Services Agreement and each Schedule is automatically deemed to include all of the terms and conditions of this Agreement; provided that whenever the provisions of a SaaS and Services Agreement or Schedule expressly conflict with these terms and conditions, the conflicting provisions of the SaaS and Services Agreement or Schedule control and take precedence over the conflicting provisions of these terms and conditions, but only for purposes of the SaaS and Services Agreement or Schedule.

3.3 Work Schedule. Unless they are expressly described as firm deadlines, in which case the Provider’s obligation shall be to meet such dates, any schedules, deadlines or timeframes set forth in a SaaS and Services Agreement or a Schedule represent estimates that the Provider shall use its reasonable commercial efforts to achieve. The Client acknowledges that the Provider’s successful and timely performance of the Additional Services is dependent on the active participation and collaboration of the Client, its employees and representatives, including but not limited to such employees and representatives designated as “Client Project Team Members” (as may be described in the SaaS and Services Agreement or an applicable Schedule). The Client shall, and shall cause the Client Project Team Members to act reasonably and co-operate fully with the Provider with respect to the Provider’s performance of the Additional Services. The Provider shall not be liable for any delay or cost or expense caused as a result of the delay of the Client provided that the Provider has notified the Client of such delay.

3.4 Acceptance. Where a SaaS and Services Agreement or a Schedule contemplates the development of a deliverable or Work Product, the Client shall have a period to review and accept the completed deliverables or Work Product (such period to be specified in the SaaS and Services Agreement or the applicable Schedule, or a five (5) business days if no period is specified) and the Provider shall have a period to remedy any deficiencies identified by the Client (such period to be as specified in the SaaS and Services Agreement or applicable Schedule, or a reasonable period if no period is specified). The Client shall provide the Provider prompt notice of any deficiencies identified by the Client. If the Client does not give written notice of any deficiencies within such period, it shall be deemed to have accepted the Deliverables.

3.5 Client Representations and Warranties. The Client represents and warrants that the Client’s use of the Additional Services and the use of the Additional Services by the Client’s directors, officers, employees, contractors, representatives and other agents will (a) be consistent with the SaaS and Services Agreement and these Terms, and any licenses provided; and (b) comply with Applicable Law, including without limitation Privacy Laws.

3.6 Additional Client Responsibilities and Acknowledgements. In addition to any specific responsibilities set out in the SaaS and Services Agreement, these Terms, and/or any Schedule, the Client shall be responsible for the following:

1. If applicable, the Client shall ensure that sufficient Client representatives are present or available as the Provider may require in connection with the performance of any Additional Services or the creation of any Work Product or deliverables;
2. The Client shall be liable for the acts and omissions of any of its directors, officers, employees, contractors, representatives and/or agents as if such act or omission were an act or omission of the Client; and
3. The Client shall ensure that any tokens that provide access to the Client to any databases that may contain personal information or health information, shall not be shared or used by the Client except as permitted under a SaaS and Services Agreement, these Terms, or a Schedule. The Client acknowledges that only certain categories of Users will receive such access tokens.

4 USER PROFILES

4.1 Provisioning and User Profiles. Upon entering into a SaaS and Services Agreement with the Client, the Provider shall permit the initial Administrator, as specified by the Client, to register for a User account (“User Account”). The Initial Administrator may authorize Users subject to the limitations and additional terms described in the SaaS and Services Agreement. The Initial Administrator shall be deemed to have the authority to manage (including adding and removing) Users. Administrators may deactivate any User if the Administrator wishes to terminate access to the Services for any User. Access to specific features of the Services may only be available to specific User types.

4.2 Registration. Upon logging into the Software for the first time, the Administrators and Users will be prompted to register for a User Account. Administrators and Users agree to:

1. provide accurate, current and complete information as may be prompted by any registration forms on the Software (“Registration Data”);
2. maintain the security of the their password;
3. maintain and promptly update the Registration Data, and any other information the they provide to the Software, and to keep it accurate, current and complete; and
4. accept all risks of unauthorized access to the Registration Data and any other information provided to the Provider.

The Client shall be responsible for all activity by Users on the Software, including the activity performed on the Software through the User profile by an agent, representative, employee (including former employees who maintained access to the Services), or any other person acting on behalf of such User. It is the responsibility of the Client to delete User profiles or otherwise remove access to Users who should no longer be active (e.g. a User who is no longer an employee or contractor of the Client).

5 LICENSE TO SOFTWARE AND LICENSE RESTRICTIONS

5.1 License to Software. Provider hereby grants to Client and authorized Administrators and Users a non-exclusive, non-transferable license to use the Software and solely permit the Client, Administrator(s), and Users to use the functionality contained within the Software for legitimate purposes during the Term.

5.2 License Restrictions. Except as set forth in the the SaaS and Services Agreement, these Terms, or any Schedule and to the extent contrary by Applicable Law: the Client and any User may not

1. make or distribute copies of the Software;
2. alter, copy, merge, adapt, reformat, download, or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software through automated or other means to a human-perceivable form, including, without limitation, using the Services in conjunction with, or combining content therefrom with, content obtained through scraping or any other means outside the Services, or any part thereto;
3. sell, rent, share, lease, transfer, distribute, display, host or sublicense the Software (except as is incidental or necessary for the provision of the Services);
4. modify the Software or create derivative works based upon the Software; provided however that the foregoing will not restrict Client’s rights to exploit any Client Data which may be incorporated into, reside in, or form a part of the Software;
5. use the Services in a manner that breaches the rights of any third party, any contract (including the SaaS and Services Agreement, these Terms, or any Schedule, or Third Party Licenses) or legal duty or violate any Applicable Law, including without limitation Privacy Laws;
6. copy the Services or any part, feature, function or user interface thereof;
7. access or use the Services in any way for the purposes of competing with the Services or in order to build a competitive product or service;
8. use the Services other than for its intended purposes, including, without limitation, in a manner that, as determined by the Provider in its sole discretion, constitutes excessive or abusive usage; and/or
9. use the Software or the Services to store any Personal Information of the Client’s customers or end-users, or third parties.

6 HOSTING AND SUPPORT

6.1 Hosting. The Provider will cause the Software to be hosted on a cloud server maintained by one or more reputable third-party providers (“Cloud Providers”). The Provider will be responsible for contracting with the Cloud Providers, provided that any fees and charges of the Cloud Providers related to hosting will be incurred by the Client, subject to the SaaS and Services Agreement or a Schedule. All Client Data stored on the Services is located on servers operated by the Cloud Providers in the jurisdiction(s) selected by the Client on or before the Effective Date from the available options presented by the Provider at such time.

6.2 Support. Support Services are provided to the Client and its Users in accordance with the terms of the Provider’s Support Agreement, which shall be considered as a Schedule to the SaaS and Services Agreement.

6.3 Backups. The Provider will create a backup or cause its Cloud Providers to create a backup of the Software (including all Client Data) no less frequently than once every twenty-four (24) hours. Upon request from the Client, the Provider will provide the Client with a copy of the most recent backup available.

7 CLIENT REPRESENTATIONS AND WARRANTIES AND RESPONSIBILITIES

7.1 Client Representations and Warranties. The Client represents and warrants that the Client’s use of the Services and Additional Services and the use of the Services and Additional Services by the Client’s Users will

1. be consistent with the SaaS and Services Agreement, these Terms, or any Schedule, and any licenses provided; and
2. comply with Applicable Law, including Privacy Laws. The Client also represents and warrants that it has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the SaaS and Services Agreement, these Terms, or any Schedule. The Client shall be liable for the acts and omissions of any of its Users, Administrator(s), directors, officers, employees, contractors, representatives or agents as if such act or omission were an act or omission of the Client.

7.2 Responsibilities. The Client agrees

1. that it shall be responsible for providing and maintaining its own Internet access with the necessary bandwidth speeds as recommended by the Provider (if applicable) and all necessary telecommunications equipment, services, software and other materials (collectively, “Client Equipment”) at the Client’s location(s) necessary for accessing the Services and the Additional Services;
2. that it represents and warrants that it has the right to enter into the SaaS and Services Agreement, and to allow the Provider to perform the Services and the Additional Services; and
3. that it is solely responsible for providing, updating, uploading, modifying and maintaining the Client Data.

7.3 Required Programs and Hardware. The Client acknowledges that the performance of the Services or the Additional Services may require that the Client obtain and/or install certain additional services, software programs or add-ons (“Required Programs”) and/or certain additional hardware (“Required Hardware”, collectively with Required Programs shall be referred to as “Required Programs and Hardware”). Unless indicated in the SaaS and Services Agreement, these Terms, or any Schedule, the Client shall be responsible, at its own expense, to acquire, maintain, upgrade, and replace as necessary, the Required Programs and Hardware. The Client further acknowledges that the operation of the Required Programs and Hardware may require the Client’s own hardware to be of a sufficient quality, condition and repair, and the Client shall be responsible, at its sole expense, to maintain its hardware in the appropriate quality, condition and repair as necessary to operate the Required Programs and Hardware.

7.4 Client Indemnity Regarding Use of Services/Additional Services and Client Data. The Client shall be solely responsible for all inputs, selection and use of the Services and Additional Services, and all Client Data or other data transmitted, received or created using the Services or Additional Services, even if transmitted, received or created by someone else associated with the Client, and the Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates harmless from any loss, damage or liability which may result therefrom or from any breach by the Client or its Administrators and/or Users of this Agreement.

7.5 Acceptable Use of the Services or Additional Services. The Client and its Administrator(s) and/or Users may not:

1. use, or encourage, promote, facilitate or instruct others to use the Services or Additional Services for any illegal, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libelous, menacing, offensive or invasive of another person’s privacy use or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libelous, menacing, offensive or invasive of another person’s privacy;
2. use the Services, the Additional Services, or the Work Product to violate the security or integrity of any network, computer or communications system, software application, or network or computing device;
3. interfere with or disrupt the Services or servers or networks connected to the Services or disobey any requirements, procedures, policies or regulations of networks connected to the Services or misuse the Software by introducing viruses, defects, trojans, worms, logic bombs or other material or item which is technologically harmful or destructive in nature;
4. attempt to gain unauthorized access to the Software, the server on which the Software is stored, or any server, computer or database connected to the Cloud Provider;
5. remove any legal, copyright, trademark or other proprietary rights notices contained in or on materials the Client or its Users receives or accesses pursuant to this Agreement;
6. distribute, publish, send or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising or solicitations (like ‘spam’), including commercial advertising and informational announcements;
7. use the Services or the Additional Services in any way so as to bring the Services, or any part thereof or any third-party related thereto, or the Provider into disrepute, and/or
8. breach any Applicable Law, including without limitation Privacy Laws, in their course of accessing and using the Software and the Services or Additional Services, including without limitation, illegal collection and/or use of Personal Information and/or improper use of consent management for the collection, use, and disclosure of Personal Information.

The Provider reserves the right, but does not assume the obligation, to investigate any violation of this Section or misuse of the Services.

8 FEES, EXPENSES AND PAYMENT

8.1 Fees. In consideration for the Services and Additional Services, where applicable, described in the SaaS and Services Agreement, or any Schedule, the Client shall pay to the Provider the Fees more particularly described in the SaaS and Services Agreement and any applicable Schedules. Except as otherwise specified herein or in the SaaS and Services Agreement, the Fees may be based on the Services or Additional Services purchased and the not actual usage.

8.2 Invoices and Payments. Subject to the terms of the SaaS and Services Agreement, the Provider shall invoice the Client for the Services on a monthly basis. The Client shall pay such invoices upon receipt (or such other time as specified in the SaaS and Services Agreement or any Schedule). Subject to a SaaS and Services Agreement, the Client is responsible for providing the Provider and/or the Provider’s third-party payments provider with adequate, correct and up-to-date information for any pre- authorized payment information that the Client wishes to be charged at for any Fees pursuant to these Terms, a SaaS and Services Agreement, and/or any Schedule, including advising the Provider and/or the Provider’s third-party payments provider of any credit card numbers or such cards’ expiry date changes. Subject to the SaaS and Services Agreement, on a monthly basis, the Provider shall invoice the Client for the Additional Services and any Work Product (as applicable), and the Client shall pay such invoices within thirty (30) days of receipt (or such other time as specified in the SaaS and Services Agreement or a Schedule).Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of 3.5% per month on overdue amounts, up to 42% per annum.

8.3 Disputed Invoices. Subject to a SaaS and Services Agreement or a Schedule, if the Client wishes to dispute an invoice, the Client shall notify the Provider in writing within five (5) calendar days from the date of receipt of such invoice. If the Client reasonably disputes any portion of an invoice, the Client must pay the undisputed portion of the invoice and submit a written notice of the claim with sufficient details of the amount in dispute and information necessary to identify the affected Service(s) or Additional Service(s). If the dispute is resolved against the Client, the Client shall pay such amounts plus interest at the rate referenced in Section 8.2 within seven (7) days from the resolution date. If no such notice is served, such invoice shall be accepted as complete, correct and final by both parties.

8.4 Taxes. The Client shall be responsible for all applicable sales, goods and services, harmonized sales, value added, use, excise, other similar taxes, levies and charges not otherwise included in the Fees imposed by applicable tax authorities on the provision of Services hereunder. The Client shall pay to the Provider such taxes, levies and charges which the Provider is registered to charge and collect.

8.5 Suspension of Service and Acceleration of Fees. Subject to a SaaS and Services Agreement, if the Client has preauthorized payments of any invoices pursuant to these Terms and/or a SaaS and Services Agreement, and the payment information provided by the Client leads to a failure to charge the Client for any outstanding Fees, the Client shall be notified of the unsuccessful payments processing via email at the Client’s email address, and if such failure to complete payment of outstanding invoices continues for five (5) consecutive days from the date such invoices were due, the Provider may, without limiting the Provider’s other rights and remedies, accelerate the Client’s unpaid Fee obligations, so that all such obligations become immediately due and payable, and immediately suspend the Client account and/or the Services or Additional Services until such amounts are paid in full.

9 INTELLECTUAL PROPERTY, CLIENT DATA AND PRIVACY

9.1 Ownership of the Software and Enhancements. Except for any grant of licenses in the SaaS and Services Agreement, these Terms, and/or a Schedule, or as otherwise expressly provided in these Terms, the Provider and its licensors, as applicable, shall retain all copyright, patent rights, trade secret rights, trademarks and other proprietary rights or interests (“Intellectual Property Rights”) in the Software (which excludes Client Data). Nothing in this Agreement, the SaaS and Services Agreement, or any Schedules shall be deemed to convey to the Client or any other party, any ownership right in or to Software. Upon full payment of the applicable Fees, as further set out in the applicable SaaS and Services Agreement, the Provider hereby grants to the Client and the Client Administrators and Users a non-exclusive, non-transferable, limited right to use the Software during the term of the SaaS and Services Agreement in accordance with these Terms, and the applicable SaaS and Services Agreement and Applicable Law. The Client acknowledges that the Provider may further develop or improve the Software or its functionality with or without Client feedback, and such improvements of the Software shall in any case and at all times be owned by the Provider.

9.2 Ownership of Client Data. The Provider acknowledges and agrees that, as between the parties, the Client is the sole and exclusive owner of the Client Data, and that no right or interest in the Client Data, other than pursuant to this Section, and will be collected, handled and used by the Provider only in compliance with the terms of the SaaS and Services Agreement, these Terms, and/or a Schedule. The Client hereby grants to the Provider a non-exclusive, royalty-free, non-transferable, limited right to use during the Term, Client Data provided to the Provider solely to perform Services and/or Additional Services pursuant to SaaS and Services Agreement, these Terms, and/or a Schedule, and Applicable Law.

9.3 Ownership of Work Product by Client. Upon delivery of the Services and/or Additional Services, and full payment of Client of all fees and charges to be paid hereunder, the Client shall own all Work Product and all right, title and interest, including, without limitation, all copyright, patent rights, trade secret rights, trademarks and any other proprietary right or interest, therein. The Provider shall execute and deliver such instruments and take such other steps as may be requested by the Client from time to time in order to give effect to the provisions of this Section. The Client hereby grants to Provider a worldwide, perpetual, non-exclusive, royalty-free license to use all such Work Product and other intellectual property so transferred for the purposes of providing the Services or Additional Services hereunder and for the Provider’s business and product development purposes, which may include commercializing such intellectual property. For greater certainty, the Provider shall be credited with authorship of the Work Product in connection with such uses.

9.4 All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or in the SaaS and Services Agreement, these Terms or a Schedule, all Intellectual Property Rights are expressly reserved by the parties. The Client or the Provider, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by the Provider or the Client, as applicable, from time to time in order to give effect to the provisions of this Article.

9.5 Privacy Laws. The Client and authorized Administrators and/or Users represent that

1. they have complied with all applicable Privacy Laws in connection with the collection, use and disclosure of Personal Information, and the provision of Personal Information to the Provider complies with all applicable Privacy Laws;
2. all individuals to whom such Personal Information relates have consented to the Provider’s collection, use and disclosure of such Personal Information for the purposes disclosed in the SaaS and Services Agreement, these Terms or a Schedule or our Privacy Policy;
3. they shall ensure that any Personal Information provided to the Provider (if applicable) is accurate, complete and up-to-date; and
4. if and to the extent that the Client or any of its authorized Users input Personal Information into the Software (if applicable), such Client shall be deemed to be the controller of such Personal Information for the purposes of the applicable Privacy Laws, and shall be subject to all of the duties of a controller in respect of such Personal Information and to the individual to whom it relates under applicable Privacy Laws.

9.6 Third Party/Open Source Software and Sites. The Software may contain third party software and/or open source software, which may be subject to third party licenses and require notices and/or additional terms and conditions (“Third Party Licenses”). By accepting these Terms, the Client and its Users are also accepting the Third-Party Licenses, if any, set forth therein. These Third-Party Licenses are made a part of and incorporated into these Terms. To view the Third-Party Licenses, please contact us. The Software may also contain links to third-party websites (“Third-Party Sites”) and third-party content (“Third-Party Content”). The Client and each User may use such links to Third-Party Sites and any Third-Party Content or service provided there at their own risk. The Provider does not monitor or have any control over, and makes no claim or representation regarding, Third-Party Content or Third-Party Sites. A link to a Third-Party Site or Third-Party Content does not imply the Provider’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. The Provider accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content or Third-Party Sites. When a User leaves the Software, this Agreement no longer governs. The Client and each User are responsible for reviewing the applicable terms and policies, including, without limitation, privacy and data gathering practices of any Third-Party Site, and the Client and User should make whatever investigation they feel necessary or appropriate before proceeding with any transaction with any third party

9.7 License by Client to Use Feedback. The Client grants the Provider a worldwide, perpetual, irrevocable, royalty-free license to use, and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Client or Users relating to the operation of the Software or the Services and/or Additional Services.

9.8 Publicity. Subject to a SaaS and Services Agreement or a Schedule, each of the Client and the Provider shall be permitted to use the other party’s trademarks (registered and unregistered), trade names, designs, logos and/or other indicia of origin (“Marks”) that are approved by such party for use on the other party’s website(s), social media accounts or otherwise (as applicable) solely for the purpose of indicating that the Client is a customer of the Provider. The Client agrees that the Provider may also publicize the Client’s feedback about the Software and/or Services or Additional Services on the Provider’s website(s), social media accounts or otherwise (as applicable). For clarity, such feedback may be in a written form, audio, video, or other format.

10 DISCLAIMER AND LIMITATION OF LIABILITY

10.1 Disclaimer. Except as set out in the SaaS and Services Agreement, these Terms, or any Schedule, the Services and Additional Services, and Work Product are provided to the Client and authorized Users on an “as is” basis, without warranties from the Provider of any kind, either express or implied. The Provider expressly disclaims all other warranties, express or implied, including, without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, unless otherwise specified in the applicable SaaS and Services Agreement. The Provider does not warrant that the Services, the Additional Services, and/or the Work Product will be error-free or will operate without interruption.

10.2 No Indirect, Etc. Damages. Under no circumstances shall either party be liable to the other party for any claim for

1. indirect, incidental, special or consequential damages,
2. loss or inaccuracy of data or cost of procurement of substitute goods, services or technology,
3. compensation for loss of profits, anticipated revenue, savings or goodwill, or
4. exemplary, aggravated or punitive damages howsoever incurred; in each case under any theory of law or equity, arising out of or in any way related to the SaaS and Services Agreement, these Terms, or any Services, Additional Services and/or Work Product, even if advised of the possibility thereof. The Provider shall not be responsible for any matter beyond its reasonable control.

10.3 Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement, including the indemnification obligations under Article 11, the liability of either party for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from this Agreement shall not exceed the Fees paid or payable by the Client to the Provider under this Agreement in the three (3) months preceding the Loss.

10.4 Reasonableness of Limitations. The Provider, the Client and Users agree that the limitations contained in this Section are reasonable in scope and form an integral part of this Agreement.

11 INDEMNIFICATION

11.1 Indemnity by Client. The Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Provider may incur as a result of or in connection with

1. any third party claim relating to or resulting from any negligence, willful misconduct or breach by the Client or its Users of the Client’s or its Users’ obligations under this Agreement, including its obligation to comply with all Applicable Law; and/or
2. Client Data, including the use of Client Data by the Provider and/or any of its subcontractors, infringes or violates, any third party’s rights, including, without limitation, intellectual property, privacy and/or publicity rights.

11.2 Indemnity by Provider. The Provider agrees to defend, indemnify and hold the Client, its Users, directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Client may incur as a result of or in connection with: any valid claim that the Software or software deliverables under the Additional Services, or any portion thereof infringes the intellectual property rights of any third party (“IP Claim”), provided that the Provider’s indemnity obligations under this Section 11.2 shall not apply if:

1. the Services or Work Product delivered as part of the Additional Services (or any portion thereof) was modified by the Client or any of its Users or any third party, but solely to the extent the IP Claim would have been avoided by not doing such modification;
2. if the Services or Work Product delivered as part of the Additional Services are used in combination with any other service, device, software or products, including, without limitation, third-party services, but solely to the extent that such IP Claim would have been avoided without such combination; and/or
3. any IP Claim arising or related to, the Client Data or to any events giving rise to the Client’s indemnity obligations under Section 11.1 above.

Without derogating from the foregoing defense and indemnification obligation, if the Provider believes that the Services, or any part thereof, may so infringe, then the Provider may in its sole discretion:

1. obtain (at no additional cost to the Client) the right to continue to use the Services or the Work Product;
2. replace or modify the allegedly infringing part of the Services or Work Product so that it becomes non-infringing while giving substantially equivalent performance; or
3. if the Provider determines that the foregoing remedies are not reasonably available, then the Provider may require that use of the (allegedly) infringing Service or Work Product (or part thereof) shall cease and in such an event, the Client shall receive a prorated refund of any Fees paid for the unused portion of the respective term.

THIS SECTION STATES the PROVIDER’S SOLE AND ENTIRE LIABILITY AND THE CLIENT’S EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY THE PROVIDER AND/OR ITS SERVICES, SOFTWARE, WORK PRODUCT, AND ANY UNDERLYING TECHNOLOGY.

11.3 Indemnity Conditions. The defense and indemnification obligations of the indemnifying party under Article 11 are subject to:

1. the indemnified party shall promptly provide a written notice of the claim for which an indemnification is being sought, provided that such indemnitee’s failure to do so will not relieve the indemnifying party of its obligations under Article 11, except to the extent the indemnifying party’s defense is materially prejudiced thereby;
2. the indemnifying party being given immediate and exclusive control over the defense and/or settlement of the claim, provided, however, that the indemnifying party shall not enter into any compromise or settlement of any such claim that requires any monetary obligation or admission of liability or any unreasonable responsibility or liability by an indemnitee without the prior written consent of the affected indemnitee, which shall not be unreasonably withheld or delayed; and
3. the indemnified party providing reasonable cooperation and assistance, at the indemnifying party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying party’s defense of, or response to, such claim.

12 TERM

12.1 Term. The term of this Agreement (“Term”) shall commence on the Effective Date or date of acceptance of these Terms set out in the SaaS and Services Agreement, and will continue for the length of time described in the SaaS and Services Agreement as the Initial Term (“Initial Term”). Thereafter, this Agreement will automatically renew for successive terms equal to the length of time of the Initial Term (“Renewal Terms”) subject to the SaaS and Services Agreement, unless terminated in accordance with this Agreement.

12.2 Termination.

1. Prior to Renewal. Subject to the SaaS and Services Agreement or a Schedule, either party may terminate the SaaS and Services Agreement or a Schedule by providing written notice to the other party at least sixty (60) days prior to the end of the then current term. For greater certainty, such notice may be given prior to the end of such current term, but will only take effect at the end of the then current term.
2. Breach. Either party may terminate the SaaS and Services Agreement or a Schedule if the other party materially breaches the any of the terms of these Terms, the SaaS and Services Agreement or a Schedule, including any failure to make payments when due, and such other party fails to cure such breach in all material respects within fifteen (15) days after being given notice of the breach from the non-breaching party.
3. Insolvency. Either party may terminate the SaaS and Services Agreement or a Schedule, upon written notice to the other party, if such other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party’s consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy, or if the other party becomes insolvent and cannot pay its debts when they are due.

12.3 Early Termination. Subject to a SaaS and Services Agreement, in case of an early termination pursuant to Section 12.2(b), the Client shall pay to the Provider any outstanding Fees and any invoices in accordance with these Terms.

12.4 Termination and Suspension of Users. Notwithstanding any provision of these Terms, the Provider reserves the right, in its sole discretion, without any notice or liability to the Client or any User, to

1. terminate a User’s license to use the Software, or any portion thereof;
2. block or prevent a User’s future access to and use of all or any portion of the Software;
3. change, suspend, or discontinue any aspect of the Software; and
4. impose limits on the Software

12.5 Effect of Termination. If this Agreement is terminated in accordance with Section 12.2, then:

1. Upon request, each party shall promptly deliver to the other party, all papers, databases, documents, software programs, and other tangible items (including copies) constituting the other party’s Confidential Information in its possession or under its control, or on request, destroy such materials and certify that it has done so;
2. upon a request by the Client within fifteen (15) days of termination, the Provider will within fifteen (15) days of such request, provide to the Client a copy of the Client Data in a format that is readable using commercially available third party software and or the Software, including .csv, .xls and .xlsx formats; and
3. within thirty (30) days of termination, the Provider will delete and cause to be deleted all Client Data from all computer systems owned and controlled by the Provider.

13 CONFIDENTIALITY

13.1 Definition of Confidential Information. “Confidential Information” means all information, documentation, databases, software, designs, drawings, pictures or other images (whether still or moving), sounds and content disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information includes Client Data. The Provider’s Confidential Information includes the Software (excluding Client Data), the Services, the Additional Services, and the terms and conditions of these Terms and the SaaS and Services Agreement or a Schedule. However, Confidential Information does not include any information that

1. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
2. was in the lawful possession of or was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
3. is received from a third party without breach of any obligation owed to the Disclosing Party; or
4. is independently developed by the Receiving Party, which independent development can be shown by written evidence.

13.2 Protection of Confidential Information. The Receiving Party will

1. use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care);
2. not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and
3. except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

13.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, by any court of competent jurisdiction or by any regulatory or administrative body to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.

13.4 Destruction. The Receiving Party, upon the request of the Disclosing Party or within thirty (30) days after termination of this Agreement (whichever is earlier), agrees to return and cause its representatives to return, all copies of Confidential Information belonging to or provided by the Disclosing Party or destroy such copies as directed by the Disclosing Party and certify their destruction.

13.5 Indemnity. The Receiving Party agrees to indemnify and hold the Disclosing Party harmless from and against all loss or damage or any kind and nature suffered by the Disclosing Party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Section.

14 GENERAL

14.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. This Agreement shall be treated, in all respects, as an Ontario contract.

14.2 Survival. Any terms and conditions of this Agreement which by their nature extend beyond termination of this Agreement shall survive such termination. This includes, without limitation Section 9 (Intellectual Property, Client Data and Privacy), Section 10 (Disclaimer and Limitation of Liability), Section 11 (Indemnification), Section 12.5 (Effect of Termination), Section 13 (Confidentiality) and applicable provisions of Section 14 (General).

14.3 Dispute Resolution.

1. This Section sets out the process (the “Dispute Resolution Process”) for resolving all disputes, issues, controversies, and/or claims arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement (“Disputes”).
2. Either party may initiate the Dispute Resolution Process by sending a notice of a Dispute (a “Dispute Notice”) to the other party. Upon delivery of a Dispute Notice to either party, each party shall appoint a knowledgeable, responsible, non-lawyer, management representative to meet and negotiate in good faith with the representative of the other party in order to resolve the Dispute.
3. All Disputes that are not resolved within thirty (30) days following delivery of a Dispute Notice shall be arbitrated and finally resolved, with no right of appeal, even on questions of law, pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be Toronto, Ontario, Canada. The language of the arbitration shall be English.
4. Notwithstanding anything contained in this Agreement to the contrary, either party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction whenever the facts or circumstances would permit a party to seek such relief.

14.4 Relationship. The relationship between the Client and the Provider will at all times be one of independent contractor and nothing herein shall be construed as implying an employment, partnership, or joint venture relationship. The Provider is not an employee of the Client and is not entitled to any benefits that the Client may provide to its employees. Nothing herein shall be construed as empowering either party to act as a representative or agent of the other party. Neither party shall have the authority to enter into any contract, nor to assume any liability, on behalf of the other party, nor to bind or commit the other party in any manner, except as expressly provided in this Agreement.

14.5 Force Majeure. Except as expressly provided otherwise in this Agreement, dates and times by which the Client or the Provider is required to perform under this Agreement, the SaaS and Services Agreement, or a Schedule (except for any payment obligation) will be postponed automatically to the extent and for the period of time that the Client or the Provider, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a party). The following events are deemed to be outside of a party’s reasonable control: acts of God, acts of government, acts of war, civil or military unrest, acts of public enemies, epidemics, pandemics, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the fact and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonably foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis. The parties agree that an event shall not be considered to beyond reasonable control if a reasonable businessperson applying due diligence in the same or similar circumstances under the same or similar obligations as the provisions of the SaaS and Services Agreement or Schedule would have put in place contingency plans to either materially mitigate or negate the effects of such event. A party seeking to rely on this Section must

1. notify the other party immediately and in detail of the anticipated or actual commencement of and the cause of postponement;
2. notify the other party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and
3. use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available.

14.6 Non-Solicitation. During the Term and for a period of one (1) year following termination of this Agreement for any reason, the Client shall not, directly or indirectly,

1. solicit for employment any employee or independent contractor of the Provider who was materially involved in the performance of this Agreement; or
2. induce or attempt to induce any employee or independent contractor of the Provider who was materially involved in the performance of this Agreement to leave his or her employ or contract, as applicable, with the Provider.

The foregoing will not prevent either party from hiring any employee or independent contractor who responds to a job posting or advertisement that is not specifically targeted at such employee or independent contractor.

14.7 Currency. Unless otherwise specified in the SaaS and Services Agreement, all references to amounts of money in this Agreement refer to United States (USD) currency.

14.8 Notices. Notices that the Provider may give to the Client (other than notice of amendment of this Agreement), may be provided in any of the following ways. The Provider we may email the Administrator(s) at the contact information provided in the SaaS and Services Agreement or any Registration Data or may email the Client directly. The Client may provide notice to the Provider by e-mailing the Provider.

14.9 Successors and Assigns. This Agreement shall enure to the benefit of, and be binding on, the parties and their respective successors and permitted assigns. The Provider may assign this Agreement, the SaaS and Services Agreement or any Schedule or any obligation hereunder, in its sole discretion. The Client may not assign this Agreement, the SaaS and Services Agreement or any Schedule without the prior written consent of the Provider.

14.10 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

14.11 Entire Agreement. Subject to Sections 8.2 and 14.15, these Terms, the SaaS and Services Agreement and the Schedules constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.

14.12 Waiver. No term or provision of this Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.

14.13 Fully Negotiated Agreement. The Client and the Provider acknowledge and agree that all of the provisions of this Agreement have been fully negotiated, that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favour of one party on the ground that such provision was drafted by the other party.

14.14 Language. The parties have required that these Terms, the SaaS and Services Agreement, and all deeds, documents and notices relating to the SaaS and Services Agreement and these Terms be drawn up in the English language. Les parties aux présentes ont exigé que le présent contrat et tous autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.

14.15 Modification of Terms. The Provider may modify the SaaS and Services Agreement and these Terms at any time by:

1. posting a notice on the Provider’s website or on the Software; or
2. by e-mailing the Client and/or Administrator(s) of the Client.

The Provider will also update the “Last Updated” date at the top of this Agreement. You are responsible for checking this Agreement whenever you access or use the Services. By continuing to access or use the Services or Additional Services, you are indicating that you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you must stop accessing and using the Services and/or Additional Services.

14.16 Questions. If you have any questions regarding these Terms or your use of the Services, please contact us.